Crown — Honour of Crown — Duty to consult and accommodate Aboriginal
peoples — Whether Crown has duty to consult and accommodate Aboriginal peoples
prior to making decisions that might adversely affect their as yet unproven
Aboriginal rights and title claims — Whether duty extends to third party.

For more than 100 years, the Haida people have claimed title to
all the lands of Haida Gwaii and the waters surrounding it, but that title
has not yet been legally recognized. The Province of British Columbia issued a
“Tree Farm License” (T.F.L. 39) to a large forestry firm in 1961,
permitting it to harvest trees in an area of Haida Gwaii designated as
Block 6. In 1981, 1995 and 2000, the Minister replaced T.F.L. 39,
and in 1999, the Minister approved a transfer of T.F.L. 39 to Weyerhaeuser
Co. The Haida challenged in court these replacements and the transfer, which
were made without their consent and, since at least 1994, over their
objections. They asked that the replacements and transfer be set aside. The
chambers judge dismissed the petition, but found that the government had a
moral, not a legal, duty to negotiate with the Haida. The Court of Appeal
reversed the decision, declaring that both the government and Weyerhaeuser Co.
have a duty to consult with and accommodate the Haida with respect to
harvesting timber from Block 6.

Held: The Crown’s appeal should be dismissed.
Weyerhaeuser Co.’s appeal should be allowed.

While it is open to the Haida to seek an interlocutory injunction, they
are not confined to that remedy, which may fail to adequately take account of their
interests prior to final determination thereof. If they can prove a special
obligation giving rise to a duty to consult or accommodate, they are free to
pursue other available remedies.

The government’s duty to consult with Aboriginal peoples and
accommodate their interests is grounded in the principle of the honour of the
Crown, which must be understood generously. While the asserted but unproven
Aboriginal rights and title are insufficiently specific for the honour of the
Crown to mandate that the Crown act as a fiduciary, the Crown, acting
honourably, cannot cavalierly run roughshod over Aboriginal interests where
claims affecting these interests are being seriously pursued in the process of
treaty negotiation and proof. The duty to consult and accommodate is part of a
process of fair dealing and reconciliation that begins with the assertion of
sovereignty and continues beyond formal claims resolution. The foundation of
the duty in the Crown’s honour and the goal of reconciliation suggest that the
duty arises when the Crown has knowledge, real or constructive, of the
potential existence of the Aboriginal right or title and contemplates conduct
that might adversely affect it. Consultation and accommodation before final
claims resolution preserve the Aboriginal interest and are an essential
corollary to the honourable process of reconciliation that s. 35 of the Constitution
Act, 1982, demands.

The scope of the duty is proportionate to a preliminary assessment of
the strength of the case supporting the existence of the right or title, and to
the seriousness of the potentially adverse effect upon the right or title
claimed. The Crown is not under a duty to reach an agreement; rather, the
commitment is to a meaningful process of consultation in good faith. The
content of the duty varies with the circumstances and each case must be
approached individually and flexibly. The controlling question in all
situations is what is required to maintain the honour of the Crown and to
effect reconciliation between the Crown and the Aboriginal people with respect
to the interests at stake. The effect of good faith consultation may be to
reveal a duty to accommodate. Where accommodation is required in making
decisions that may adversely affect as yet unproven Aboriginal rights and title
claims, the Crown must balance Aboriginal concerns reasonably with the
potential impact of the decision on the asserted right or title and with other
societal interests.

Third parties cannot be held liable for failing to discharge the
Crown’s duty to consult and accommodate. The honour of the Crown cannot be
delegated, and the legal responsibility for consultation and accommodation
rests with the Crown. This does not mean, however, that third parties can
never be liable to Aboriginal peoples.

Finally, the duty to consult and accommodate applies to the provincial
government. At the time of the Union, the Provinces took their interest in
land subject to any interest other than that of the Province in the same.
Since the duty to consult and accommodate here at issue is grounded in the
assertion of Crown sovereignty which pre-dated the Union, the Province took the
lands subject to this duty.

The Crown’s obligation to consult the Haida on the replacement of
T.F.L. 39 was engaged in this case. The Haida’s claims to title and
Aboriginal right to harvest red cedar were supported by a good prima facie
case, and the Province knew that the potential Aboriginal rights and title
applied to Block 6, and could be affected by the decision to replace
T.F.L. 39. T.F.L. decisions reflect strategic planning for utilization of
the resource and may have potentially serious impacts on Aboriginal rights and
titles. If consultation is to be meaningful, it must take place at the stage
of granting or renewing T.F.L.’s. Furthermore, the strength of the case for
both the Haida’s title and their right to harvest red cedar, coupled with the
serious impact of incremental strategic decisions on those interests, suggest
that the honour of the Crown may also require significant accommodation to
preserve the Haida’s interest pending resolution of their claims.

Paul J. Pearlman, Q.C., and Kathryn L. Kickbush,
for the appellants the Minister of Forests and the Attorney General of British
Columbia on behalf of Her Majesty the Queen in Right of the Province of British
Columbia.

John J. L. Hunter, Q.C., and K. Michael Stephens,
for the appellant Weyerhaeuser Company Limited.

Charles F. Willms and Kevin O’Callaghan,
for the interveners the Business Council of British Columbia, the Aggregate
Producers Association of British Columbia, the British Columbia and Yukon
Chamber of Mines, the British Columbia Chamber of Commerce, the Council of
Forest Industries and the Mining Association of British Columbia.

Thomas F. Isaac, for the intervener the British
Columbia Cattlemen’s Association.

Stuart A. Rush, Q.C., for the intervener the
Village of Port Clements.

The judgment of the Court was delivered by

The Chief Justice —

I. Introduction

1To the west of the mainland of British Columbia lie the Queen Charlotte
Islands, the traditional homeland of the Haida people. Haida Gwaii, as the
inhabitants call it, consists of two large islands and a number of smaller
islands. For more than 100 years, the Haida people have claimed title to all
the lands of the Haida Gwaii and the waters surrounding it. That title is
still in the claims process and has not yet been legally recognized.

2The islands of Haida Gwaii are heavily forested. Spruce, hemlock and
cedar abound. The most important of these is the cedar which, since time
immemorial, has played a central role in the economy and culture of the Haida
people. It is from cedar that they made their ocean-going canoes, their
clothing, their utensils and the totem poles that guarded their lodges. The
cedar forest remains central to their life and their conception of themselves.

3The forests of Haida Gwaii have been logged since before the First World
War. Portions of the island have been logged off. Other portions bear
second-growth forest. In some areas, old-growth forests can still be found.

4The Province of British Columbia continues to issue licences to cut
trees on Haida Gwaii to forestry companies. The modern name for these licenses
are Tree Farm Licences, or T.F.L.’s. Such a licence is at the heart of this
litigation. A large forestry firm, MacMillan Bloedel Limited acquired T.F.L.
39 in 1961, permitting it to harvest trees in an area designated as Block 6.
In 1981, 1995 and 2000, the Minister replaced T.F.L. 39 pursuant to procedures
set out in the Forest Act, R.S.B.C. 1996, c. 157. In 1999, the
Minister approved a transfer of T.F.L. 39 to Weyerhaeuser Company Limited (“Weyerhaeuser”).
The Haida people challenged these replacements and the transfer, which were
made without their consent and, since at least 1994, over their objections.
Nevertheless, T.F.L. 39 continued.

5In January of 2000, the Haida people launched a lawsuit objecting to the
three replacement decisions and the transfer of T.F.L. 39 to Weyerhaeuser and
asking that they be set aside. They argued legal encumbrance, equitable
encumbrance and breach of fiduciary duty, all grounded in their assertion of
Aboriginal title.

6This brings us to the issue before this Court. The government holds
legal title to the land. Exercising that legal title, it has granted
Weyerhaeuser the right to harvest the forests in Block 6 of the land. But the
Haida people also claim title to the land — title which they are in the process
of trying to prove — and object to the harvesting of the forests on Block 6 as
proposed in T.F.L. 39. In this situation, what duty if any does the government
owe the Haida people? More concretely, is the government required to consult
with them about decisions to harvest the forests and to accommodate
their concerns about what if any forest in Block 6 should be harvested before
they have proven their title to land and their Aboriginal rights?

7The stakes are huge. The Haida argue that absent consultation and
accommodation, they will win their title but find themselves deprived of
forests that are vital to their economy and their culture. Forests take
generations to mature, they point out, and old-growth forests can never be
replaced. The Haida’s claim to title to Haida Gwaii is strong, as found by the
chambers judge. But it is also complex and will take many years to prove. In
the meantime, the Haida argue, their heritage will be irretrievably despoiled.

8The government, in turn, argues that it has the right and responsibility
to manage the forest resource for the good of all British Columbians, and that
until the Haida people formally prove their claim, they have no legal right to
be consulted or have their needs and interests accommodated.

9The chambers judge found that the government has a moral, but not a
legal, duty to negotiate with the Haida people: [2001] 2 C.N.L.R. 83, 2000
BCSC 1280. The British Columbia Court of Appeal reversed this decision,
holding that both the government and Weyerhaeuser have a duty to consult with
and accommodate the Haida people with respect to harvesting timber from
Block 6: (2002), 99 B.C.L.R. (3d) 209, 2002 BCCA 147, with supplementary
reasons (2002), 5 B.C.L.R. (4th) 33, 2002 BCCA 462.

10I conclude that the government has a legal duty to consult with the
Haida people about the harvest of timber from Block 6, including decisions to
transfer or replace Tree Farm Licences. Good faith consultation may in turn
lead to an obligation to accommodate Haida concerns in the harvesting of
timber, although what accommodation if any may be required cannot at this time
be ascertained. Consultation must be meaningful. There is no duty to reach agreement.
The duty to consult and, if appropriate, accommodate cannot be discharged by
delegation to Weyerhaeuser. Nor does Weyerhaeuser owe any independent duty to
consult with or accommodate the Haida people’s concerns, although the
possibility remains that it could become liable for assumed obligations. It
follows that I would dismiss the Crown’s appeal and allow the appeal of
Weyerhaeuser.

11This case is the first of its kind to reach this Court. Our task is the
modest one of establishing a general framework for the duty to consult and
accommodate, where indicated, before Aboriginal title or rights claims have
been decided. As this framework is applied, courts, in the age-old tradition
of the common law, will be called on to fill in the details of the duty to
consult and accommodate.

II. Analysis

A. Does
the Law of Injunctions Govern This Situation?

12It is argued that the Haida’s proper remedy is to apply for an
interlocutory injunction against the government and Weyerhaeuser, and that
therefore it is unnecessary to consider a duty to consult or accommodate. In RJR
— MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, the
requirements for obtaining an interlocutory injunction were reviewed. The
plaintiff must establish: (1) a serious issue to be tried; (2) that irreparable
harm will be suffered if the injunction is not granted; and (3) that the
balance of convenience favours the injunction.

13It is open to plaintiffs like the Haida to seek an interlocutory
injunction. However, it does not follow that they are confined to that
remedy. If plaintiffs can prove a special obligation giving rise to a duty to
consult or accommodate, they are free to pursue these remedies. Here the Haida
rely on the obligation flowing from the honour of the Crown toward Aboriginal
peoples.

14Interlocutory injunctions may offer only partial imperfect relief.
First, as mentioned, they may not capture the full obligation on the government
alleged by the Haida. Second, they typically represent an all-or-nothing
solution. Either the project goes ahead or it halts. By contrast, the alleged
duty to consult and accommodate by its very nature entails balancing of
Aboriginal and other interests and thus lies closer to the aim of
reconciliation at the heart of Crown-Aboriginal relations, as set out in R.
v. Van der Peet, [1996] 2 S.C.R. 507, at para. 31, and Delgamuukw v.
British Columbia, [1997] 3 S.C.R. 1010, at para. 186. Third, the balance
of convenience test tips the scales in favour of protecting jobs and government
revenues, with the result that Aboriginal interests tend to “lose” outright
pending a final determination of the issue, instead of being balanced
appropriately against conflicting concerns: J. J. L. Hunter,
“Advancing Aboriginal Title Claims after Delgamuukw: The Role of the
Injunction” (June 2000). Fourth, interlocutory injunctions are designed as a
stop-gap remedy pending litigation of the underlying issue. Aboriginal claims
litigation can be very complex and require years and even decades to resolve in
the courts. An interlocutory injunction over such a long period of time might
work unnecessary prejudice and may diminish incentives on the part of the
successful party to compromise. While Aboriginal claims can be and are pursued
through litigation, negotiation is a preferable way of reconciling state and
Aboriginal interests. For all these reasons, interlocutory injunctions may
fail to adequately take account of Aboriginal interests prior to their final
determination.

15I conclude that the remedy of interlocutory injunction does not preclude
the Haida’s claim. We must go further and see whether the special relationship
with the Crown upon which the Haida rely gives rise to a duty to consult and,
if appropriate, accommodate. In what follows, I discuss the source of the
duty, when the duty arises, the scope and content of the duty, whether the duty
extends to third parties, and whether it applies to the provincial government
and not exclusively the federal government. I then apply the conclusions
flowing from this discussion to the facts of this case.

B. The
Source of a Duty to Consult and Accommodate

16The government’s duty to consult with Aboriginal peoples and accommodate
their interests is grounded in the honour of the Crown. The honour of the Crown
is always at stake in its dealings with Aboriginal peoples: see for example R.
v. Badger, [1996] 1 S.C.R. 771, at para. 41; R. v. Marshall, [1999]
3 S.C.R. 456. It is not a mere incantation, but rather a core precept that
finds its application in concrete practices.

17The historical roots of the principle of the honour of the Crown suggest
that it must be understood generously in order to reflect the underlying
realities from which it stems. In all its dealings with Aboriginal peoples,
from the assertion of sovereignty to the resolution of claims and the
implementation of treaties, the Crown must act honourably. Nothing less is
required if we are to achieve “the reconciliation of the pre-existence of
aboriginal societies with the sovereignty of the Crown”: Delgamuukw, supra,
at para. 186, quoting Van der Peet, supra, at para. 31.

18The honour of the Crown gives rise to different duties in different
circumstances. Where the Crown has assumed discretionary control over specific
Aboriginal interests, the honour of the Crown gives rise to a fiduciary duty: Wewaykum
Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79, at para. 79. The
content of the fiduciary duty may vary to take into account the Crown’s other,
broader obligations. However, the duty’s fulfilment requires that the Crown
act with reference to the Aboriginal group’s best interest in exercising
discretionary control over the specific Aboriginal interest at stake. As
explained in Wewaykum, at para. 81, the term “fiduciary duty” does not
connote a universal trust relationship encompassing all aspects of the
relationship between the Crown and Aboriginal peoples:

. . . “fiduciary duty” as a source of plenary Crown liability covering
all aspects of the Crown-Indian band relationship . . . overshoots the mark.
The fiduciary duty imposed on the Crown does not exist at large but in relation
to specific Indian interests.

Here,
Aboriginal rights and title have been asserted but have not been defined or
proven. The Aboriginal interest in question is insufficiently specific for the
honour of the Crown to mandate that the Crown act in the Aboriginal group’s
best interest, as a fiduciary, in exercising discretionary control over the
subject of the right or title.

19The honour of the Crown also infuses the processes of treaty making and
treaty interpretation. In making and applying treaties, the Crown must act
with honour and integrity, avoiding even the appearance of “sharp dealing”(Badger,
at para. 41). Thus in Marshall, supra, at para. 4, the majority
of this Court supported its interpretation of a treaty by stating that “nothing
less would uphold the honour and integrity of the Crown in its dealings with
the Mi’kmaq people to secure their peace and friendship . . .”.

20Where treaties remain to be concluded, the honour of the Crown requires
negotiations leading to a just settlement of Aboriginal claims: R. v.
Sparrow, [1990] 1 S.C.R. 1075, at pp. 1105-6. Treaties serve to reconcile
pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to
define Aboriginal rights guaranteed by s. 35 of the Constitution Act, 1982.
Section 35 represents a promise of rights recognition, and “[i]t is always
assumed that the Crown intends to fulfil its promises” (Badger, supra,
at para. 41). This promise is realized and sovereignty claims reconciled
through the process of honourable negotiation. It is a corollary of s. 35 that
the Crown act honourably in defining the rights it guarantees and in
reconciling them with other rights and interests. This, in turn, implies a
duty to consult and, if appropriate, accommodate.

21This duty to consult is recognized and discussed in the jurisprudence.
In Sparrow, supra, at p. 1119, this Court affirmed a duty to
consult with west-coast Salish asserting an unresolved right to fish. Dickson
C.J. and La Forest J. wrote that one of the factors in determining whether
limits on the right were justified is “whether the aboriginal group in question
has been consulted with respect to the conservation measures being
implemented”.

22The Court affirmed the duty to consult regarding resources to which
Aboriginal peoples make claim a few years later in R. v. Nikal, [1996] 1
S.C.R. 1013, where Cory J. wrote: “So long as every reasonable effort is made
to inform and to consult, such efforts would suffice to meet the justification
requirement” (para. 110).

23In the companion case of R. v. Gladstone, [1996] 2 S.C.R. 723,
Lamer C.J. referred to the need for “consultation and compensation”, and to
consider “how the government has accommodated different aboriginal rights in a
particular fishery . . ., how important the fishery is to the economic and
material well-being of the band in question, and the criteria taken into
account by the government in, for example, allocating commercial licences
amongst different users” (para. 64).

24The Court’s seminal decision in Delgamuukw, supra, at
para. 168, in the context of a claim for title to land and resources, confirmed
and expanded on the duty to consult, suggesting the content of the duty varied
with the circumstances: from a minimum “duty to discuss important decisions”
where the “breach is less serious or relatively minor”; through the
“significantly deeper than mere consultation” that is required in “most cases”;
to “full consent of [the] aboriginal nation” on very serious issues. These
words apply as much to unresolved claims as to intrusions on settled claims.

25Put simply, Canada’s Aboriginal peoples were here when Europeans came,
and were never conquered. Many bands reconciled their claims with the
sovereignty of the Crown through negotiated treaties. Others, notably in
British Columbia, have yet to do so. The potential rights embedded in these
claims are protected by s. 35 of the Constitution Act, 1982. The honour
of the Crown requires that these rights be determined, recognized and
respected. This, in turn, requires the Crown, acting honourably, to participate
in processes of negotiation. While this process continues, the honour of the
Crown may require it to consult and, where indicated, accommodate Aboriginal
interests.

C. When
the Duty to Consult and Accommodate Arises

26Honourable negotiation implies a duty to consult with Aboriginal
claimants and conclude an honourable agreement reflecting the claimants’
inherent rights. But proving rights may take time, sometimes a very long
time. In the meantime, how are the interests under discussion to be treated?
Underlying this question is the need to reconcile prior Aboriginal occupation
of the land with the reality of Crown sovereignty. Is the Crown, under the
aegis of its asserted sovereignty, entitled to use the resources at issue as it
chooses, pending proof and resolution of the Aboriginal claim? Or must it
adjust its conduct to reflect the as yet unresolved rights claimed by the
Aboriginal claimants?

27The answer, once again, lies in the honour of the Crown. The Crown, acting
honourably, cannot cavalierly run roughshod over Aboriginal interests where
claims affecting these interests are being seriously pursued in the process of
treaty negotiation and proof. It must respect these potential, but yet
unproven, interests. The Crown is not rendered impotent. It may continue to
manage the resource in question pending claims resolution. But, depending on
the circumstances, discussed more fully below, the honour of the Crown may
require it to consult with and reasonably accommodate Aboriginal interests
pending resolution of the claim. To unilaterally exploit a claimed resource
during the process of proving and resolving the Aboriginal claim to that
resource, may be to deprive the Aboriginal claimants of some or all of the benefit
of the resource. That is not honourable.

28The government argues that it is under no duty to consult and
accommodate prior to final determination of the scope and content of the
right. Prior to proof of the right, it is argued, there exists only a broad,
common law “duty of fairness”, based on the general rule that an administrative
decision that affects the “rights, privileges or interests of an individual”
triggers application of the duty of fairness: Cardinal v. Director of Kent
Institution, [1985] 2 S.C.R. 643, at p. 653; Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 20. The
government asserts that, beyond general administrative law obligations, a duty
to consult and accommodate arises only where the government has taken on the
obligation of protecting a specific Aboriginal interest or is seeking to limit
an established Aboriginal interest. In the result, the government submits that
there is no legal duty to consult and accommodate Haida interests at this
stage, although it concedes there may be “sound practical and policy reasons”
to do so.

29The government cites both authority and policy in support of its
position. It relies on Sparrow, supra, at pp. 1110-13 and 1119,
where the scope and content of the right were determined and infringement
established, prior to consideration of whether infringement was justified. The
government argues that its position also finds support in the perspective of
the Ontario Court of Appeal in TransCanada Pipelines Ltd. v. Beardmore
(Township) (2000), 186 D.L.R. (4th) 403, which held that “what triggers a
consideration of the Crown’s duty to consult is a showing by the First Nation
of a violation of an existing Aboriginal or treaty right recognized and
affirmed by s. 35(1)” (para. 120).

30As for policy, the government points to practical difficulties in the
enforcement of a duty to consult or accommodate unproven claims. If the duty
to consult varies with the circumstances from a “mere” duty to notify and listen
at one end of the spectrum to a requirement of Aboriginal consent at the other
end, how, the government asks, are the parties to agree which level is
appropriate in the face of contested claims and rights? And if they cannot
agree, how are courts or tribunals to determine this? The government also
suggests that it is impractical and unfair to require consultation before final
claims determination because this amounts to giving a remedy before issues of
infringement and justification are decided.

31The government’s arguments do not withstand scrutiny. Neither the
authorities nor practical considerations support the view that a duty to
consult and, if appropriate, accommodate arises only upon final determination
of the scope and content of the right.

32The jurisprudence of this Court supports the view that the duty to
consult and accommodate is part of a process of fair dealing and reconciliation
that begins with the assertion of sovereignty and continues beyond formal
claims resolution. Reconciliation is not a final legal remedy in the usual
sense. Rather, it is a process flowing from rights guaranteed by s. 35(1) of
the Constitution Act, 1982. This process of reconciliation flows from
the Crown’s duty of honourable dealing toward Aboriginal peoples, which arises
in turn from the Crown’s assertion of sovereignty over an Aboriginal people and
de facto control of land and resources that were formerly in the control
of that people. As stated in Mitchell v. M.N.R., [2001] 1 S.C.R. 911,
2001 SCC 33, at para. 9, “[w]ith this assertion [sovereignty] arose an
obligation to treat aboriginal peoples fairly and honourably, and to protect
them from exploitation” (emphasis added).

33To limit reconciliation to the post-proof sphere risks treating reconciliation
as a distant legalistic goal, devoid of the “meaningful content” mandated by
the “solemn commitment” made by the Crown in recognizing and affirming
Aboriginal rights and title: Sparrow, supra, at p. 1108. It also
risks unfortunate consequences. When the distant goal of proof is finally
reached, the Aboriginal peoples may find their land and resources changed and
denuded. This is not reconciliation. Nor is it honourable.

34The existence of a legal duty to consult prior to proof of claims is
necessary to understand the language of cases like Sparrow, Nikal,and Gladstone, supra, where confirmation of the right and
justification of an alleged infringement were litigated at the same time. For
example, the reference in Sparrow to Crown behaviour in determining if
any infringements were justified, is to behaviour before determination
of the right. This negates the contention that a proven right is the trigger
for a legal duty to consult and if appropriate accommodate even in the context
of justification.

35But, when precisely does a duty to consult arise? The foundation of the
duty in the Crown’s honour and the goal of reconciliation suggest that the
duty arises when the Crown has knowledge, real or constructive, of the
potential existence of the Aboriginal right or title and contemplates conduct
that might adversely affect it: see Halfway River First Nation v. British
Columbia (Ministry of Forests), [1997] 4 C.N.L.R. 45 (B.C.S.C.), at p. 71, per
Dorgan J.

36This leaves the practical argument. It is said that before claims are
resolved, the Crown cannot know that the rights exist, and hence can have no
duty to consult or accommodate. This difficulty should not be denied or
minimized. As I stated (dissenting) in Marshall, supra, at para.
112, one cannot “meaningfully discuss accommodation or justification of a right
unless one has some idea of the core of that right and its modern scope”.
However, it will frequently be possible to reach an idea of the asserted rights
and of their strength sufficient to trigger an obligation to consult and
accommodate, short of final judicial determination or settlement. To
facilitate this determination, claimants should outline their claims with
clarity, focussing on the scope and nature of the Aboriginal rights they assert
and on the alleged infringements. This is what happened here, where the
chambers judge made a preliminary evidence-based assessment of the strength of
the Haida claims to the lands and resources of Haida Gwaii, particularly Block
6.

37There is a distinction between knowledge sufficient to trigger a duty to
consult and, if appropriate, accommodate, and the content or scope of the duty
in a particular case. Knowledge of a credible but unproven claim suffices to
trigger a duty to consult and accommodate. The content of the duty, however,
varies with the circumstances, as discussed more fully below. A dubious or
peripheral claim may attract a mere duty of notice, while a stronger claim may
attract more stringent duties. The law is capable of differentiating between
tenuous claims, claims possessing a strong prima facie case, and
established claims. Parties can assess these matters, and if they cannot
agree, tribunals and courts can assist. Difficulties associated with the
absence of proof and definition of claims are addressed by assigning
appropriate content to the duty, not by denying the existence of a duty.

38I conclude that consultation and accommodation before final claims
resolution, while challenging, is not impossible, and indeed is an essential
corollary to the honourable process of reconciliation that s. 35 demands. It
preserves the Aboriginal interest pending claims resolution and fosters a
relationship between the parties that makes possible negotiations, the
preferred process for achieving ultimate reconciliation: see S. Lawrence and P.
Macklem, “From Consultation to Reconciliation: Aboriginal Rights and the
Crown’s Duty to Consult” (2000), 79 Can. Bar Rev. 252, at p. 262.
Precisely what is required of the government may vary with the strength of the
claim and the circumstances. But at a minimum, it must be consistent with the
honour of the Crown.

D. The
Scope and Content of the Duty to Consult and Accommodate

39The content of the duty to consult and accommodate varies with the
circumstances. Precisely what duties arise in different situations will be
defined as the case law in this emerging area develops. In general terms,
however, it may be asserted that the scope of the duty is proportionate to a
preliminary assessment of the strength of the case supporting the existence of
the right or title, and to the seriousness of the potentially adverse effect
upon the right or title claimed.

40In Delgamuukw, supra, at para. 168, the Court considered
the duty to consult and accommodate in the context of established claims.
Lamer C.J. wrote:

The nature and scope of the duty of consultation will vary with the
circumstances. In occasional cases, when the breach is less serious or
relatively minor, it will be no more than a duty to discuss important decisions
that will be taken with respect to lands held pursuant to aboriginal title. Of
course, even in these rare cases when the minimum acceptable standard is
consultation, this consultation must be in good faith, and with the intention
of substantially addressing the concerns of the aboriginal peoples whose lands
are at issue. In most cases, it will be significantly deeper than mere
consultation. Some cases may even require the full consent of an aboriginal
nation, particularly when provinces enact hunting and fishing regulations in
relation to aboriginal lands.

41Transposing this passage to pre-proof claims, one may venture the
following. While it is not useful to classify situations into watertight
compartments, different situations requiring different responses can be
identified. In all cases, the honour of the Crown requires that the Crown act
with good faith to provide meaningful consultation appropriate to the
circumstances. In discharging this duty, regard may be had to the procedural
safeguards of natural justice mandated by administrative law.

42At all stages, good faith on both sides is required. The common thread
on the Crown’s part must be “the intention of substantially addressing
[Aboriginal] concerns” as they are raised (Delgamuukw, supra, at
para. 168), through a meaningful process of consultation. Sharp dealing is not
permitted. However, there is no duty to agree; rather, the commitment is to a
meaningful process of consultation. As for Aboriginal claimants, they must not
frustrate the Crown’s reasonable good faith attempts, nor should they take
unreasonable positions to thwart government from making decisions or acting in
cases where, despite meaningful consultation, agreement is not reached: see Halfway
River First Nation v. British Columbia (Ministry of Forests), [1999] 4
C.N.L.R. 1 (B.C.C.A.), at p. 44; Heiltsuk Tribal Council v. British Columbia
(Minister of Sustainable Resource Management) (2003), 19 B.C.L.R. (4th) 107
(B.C.S.C.). Mere hard bargaining, however, will not offend an
Aboriginal people’s right to be consulted.

43Against this background, I turn to the kind of duties that may arise in
different situations. In this respect, the concept of a spectrum may be
helpful, not to suggest watertight legal compartments but rather to indicate
what the honour of the Crown may require in particular circumstances. At one
end of the spectrum lie cases where the claim to title is weak, the Aboriginal
right limited, or the potential for infringement minor. In such cases, the
only duty on the Crown may be to give notice, disclose information, and discuss
any issues raised in response to the notice. “‘[C]onsultation’ in its least
technical definition is talking together for mutual understanding”: T. Isaac
and A. Knox, “The Crown’s Duty to Consult Aboriginal People” (2003), 41 Alta.
L. Rev. 49, at p. 61.

44At the other end of the spectrum lie cases where a strong prima facie
case for the claim is established, the right and potential infringement is of
high significance to the Aboriginal peoples, and the risk of non-compensable
damage is high. In such cases deep consultation, aimed at finding a
satisfactory interim solution, may be required. While precise requirements
will vary with the circumstances, the consultation required at this stage may
entail the opportunity to make submissions for consideration, formal
participation in the decision-making process, and provision of written reasons
to show that Aboriginal concerns were considered and to reveal the impact they
had on the decision. This list is neither exhaustive, nor mandatory for every
case. The government may wish to adopt dispute resolution procedures like
mediation or administrative regimes with impartial decision-makers in complex
or difficult cases.

45Between these two extremes of the spectrum just described, will lie
other situations. Every case must be approached individually. Each must also
be approached flexibly, since the level of consultation required may change as
the process goes on and new information comes to light. The controlling
question in all situations is what is required to maintain the honour of the
Crown and to effect reconciliation between the Crown and the Aboriginal peoples
with respect to the interests at stake. Pending settlement, the Crown is bound
by its honour to balance societal and Aboriginal interests in making decisions
that may affect Aboriginal claims. The Crown may be required to make decisions
in the face of disagreement as to the adequacy of its response to Aboriginal
concerns. Balance and compromise will then be necessary.

46Meaningful consultation may oblige the Crown to make changes to its
proposed action based on information obtained through consultations. The New
Zealand Ministry of Justice’s Guide for Consultation with Mäori (1997)
provides insight (at pp. 21 and 31):

Consultation is not just a process of exchanging information. It also
entails testing and being prepared to amend policy proposals in the light of
information received, and providing feedback. Consultation therefore becomes a
process which should ensure both parties are better informed
. . . .

. . .

. . . genuine consultation means a process that involves . . .:

·gathering
information to test policy proposals

·putting
forward proposals that are not yet finalised

·seeking
Mäori opinion on those proposals

·informing
Mäori of all relevant information upon which those proposals are based

·not
promoting but listening with an open mind to what Mäori have to say

·being
prepared to alter the original proposal

·providing
feedback both during the consultation process and after the decision-process.

47When the consultation process suggests amendment of Crown policy, we
arrive at the stage of accommodation. Thus the effect of good faith
consultation may be to reveal a duty to accommodate. Where a strong prima
facie case exists for the claim, and the consequences of the government’s
proposed decision may adversely affect it in a significant way, addressing the
Aboriginal concerns may require taking steps to avoid irreparable harm or to
minimize the effects of infringement, pending final resolution of the
underlying claim. Accommodation is achieved through consultation, as this
Court recognized in R. v. Marshall, [1999] 3 S.C.R. 533, at para. 22:
“. . . the process of accommodation of the treaty right may best be resolved by
consultation and negotiation”.

48This process does not give Aboriginal groups a veto over what can be
done with land pending final proof of the claim. The Aboriginal “consent”
spoken of in Delgamuukw is appropriate only in cases of established
rights, and then by no means in every case. Rather, what is required is a
process of balancing interests, of give and take.

49This flows from the meaning of “accommodate”. The terms “accommodate”
and “accommodation” have been defined as to “adapt, harmonize, reconcile” . . .
“an adjustment or adaptation to suit a special or different purpose . . . a
convenient arrangement; a settlement or compromise”: Concise Oxford
Dictionary of Current English (9th ed. 1995), at p. 9. The accommodation
that may result from pre-proof consultation is just this — seeking compromise
in an attempt to harmonize conflicting interests and move further down the path
of reconciliation. A commitment to the process does not require a duty to
agree. But it does require good faith efforts to understand each other’s
concerns and move to address them.

50The Court’s decisions confirm this vision of accommodation. The Court
in Sparrow raised the concept of accommodation, stressing the need to
balance competing societal interests with Aboriginal and treaty rights. In R.
v. Sioui, [1990] 1 S.C.R. 1025, at p. 1072, the Court stated that the
Crown bears the burden of proving that its occupancy of lands “cannot be
accommodated to reasonable exercise of the Hurons’ rights”. And in R. v.
Côté, [1996] 3 S.C.R. 139, at para. 81, the Court spoke of whether
restrictions on Aboriginal rights “can be accommodated with the Crown’s special
fiduciary relationship with First Nations”. Balance and compromise are
inherent in the notion of reconciliation. Where accommodation is required in
making decisions that may adversely affect as yet unproven Aboriginal rights
and title claims, the Crown must balance Aboriginal concerns reasonably with
the potential impact of the decision on the asserted right or title and with
other societal interests.

51It is open to governments to set up regulatory schemes to address the
procedural requirements appropriate to different problems at different stages,
thereby strengthening the reconciliation process and reducing recourse to the
courts. As noted in R. v. Adams, [1996] 3 S.C.R. 101, at para. 54, the
government “may not simply adopt an unstructured discretionary administrative
regime which risks infringing aboriginal rights in a substantial number of
applications in the absence of some explicit guidance”. It should be observed
that, since October 2002, British Columbia has had a Provincial Policy for
Consultation with First Nations to direct the terms of provincial ministries’
and agencies’ operational guidelines. Such a policy, while falling short of a
regulatory scheme, may guard against unstructured discretion and provide a
guide for decision-makers.

E. Do
Third Parties Owe a Duty to Consult and Accommodate?

52The Court of Appeal found that Weyerhaeuser, the forestry contractor
holding T.F.L. 39, owed the Haida people a duty to consult and accommodate.
With respect, I cannot agree.

53It is suggested (per Lambert J.A.) that a third party’s
obligation to consult Aboriginal peoples may arise from the ability of the
third party to rely on justification as a defence against infringement.
However, the duty to consult and accommodate, as discussed above, flows from
the Crown’s assumption of sovereignty over lands and resources formerly held by
the Aboriginal group. This theory provides no support for an obligation on
third parties to consult or accommodate. The Crown alone remains legally
responsible for the consequences of its actions and interactions with third
parties, that affect Aboriginal interests. The Crown may delegate procedural
aspects of consultation to industry proponents seeking a particular
development; this is not infrequently done in environmental assessments.
Similarly, the terms of T.F.L. 39 mandated Weyerhaeuser to specify measures
that it would take to identify and consult with “aboriginal people claiming an
aboriginal interest in or to the area” (Tree Farm Licence No. 39, Haida Tree
Farm Licence, para. 2.09(g)(ii)). However, the ultimate legal responsibility for
consultation and accommodation rests with the Crown. The honour of the Crown
cannot be delegated.

54It is also suggested (per Lambert J.A.) that third parties might
have a duty to consult and accommodate on the basis of the trust law doctrine
of “knowing receipt”. However, as discussed above, while the Crown’s fiduciary
obligations and its duty to consult and accommodate share roots in the
principle that the Crown’s honour is engaged in its relationship with
Aboriginal peoples, the duty to consult is distinct from the fiduciary duty
that is owed in relation to particular cognizable Aboriginal interests. As
noted earlier, the Court cautioned in Wewaykum against assuming that a
general trust or fiduciary obligation governs all aspects of relations between
the Crown and Aboriginal peoples. Furthermore, this Court in Guerin v. The
Queen, [1984] 2 S.C.R. 335, made it clear that the “trust-like”
relationship between the Crown and Aboriginal peoples is not a true “trust”,
noting that “[t]he law of trusts is a highly developed, specialized branch of
the law” (p. 386). There is no reason to graft the doctrine of knowing receipt
onto the special relationship between the Crown and Aboriginal peoples. It is
also questionable whether businesses acting on licence from the Crown can be
analogized to persons who knowingly turn trust funds to their own ends.

55Finally, it is suggested (per Finch C.J.B.C.) that third parties
should be held to the duty in order to provide an effective remedy. The first
difficulty with this suggestion is that remedies do not dictate liability.
Once liability is found, the question of remedy arises. But the remedy tail
cannot wag the liability dog. We cannot sue a rich person, simply because the
person has deep pockets or can provide a desired result. The second problem
is that it is not clear that the government lacks sufficient remedies to
achieve meaningful consultation and accommodation. In this case, Part 10 of
T.F.L. 39 provided that the Ministry of Forests could vary any permit granted
to Weyerhaeuser to be consistent with a court’s determination of Aboriginal
rights or title. The government may also require Weyerhaeuser to amend its
management plan if the Chief Forester considers that interference with an
Aboriginal right has rendered the management plan inadequate (para. 2.38(d)).
Finally, the government can control by legislation, as it did when it
introduced the Forestry Revitalization Act, S.B.C. 2003, c. 17, which
claws back 20 percent of all licensees’ harvesting rights, in part to make land
available for Aboriginal peoples. The government’s legislative authority over
provincial natural resources gives it a powerful tool with which to respond to
its legal obligations. This, with respect, renders questionable the statement
by Finch C.J.B.C. that the government “has no capacity to allocate any part of
that timber to the Haida without Weyerhaeuser’s consent or co-operation”
((2002), 5 B.C.L.R. (4th) 33, at para. 119). Failure to hold Weyerhaeuser to a
duty to consult and accommodate does not make the remedy “hollow or illusory”.

56The fact that third parties are under no duty to consult or accommodate
Aboriginal concerns does not mean that they can never be liable to Aboriginal
peoples. If they act negligently in circumstances where they owe Aboriginal
peoples a duty of care, or if they breach contracts with Aboriginal peoples or
deal with them dishonestly, they may be held legally liable. But they cannot
be held liable for failing to discharge the Crown’s duty to consult and
accommodate.

F. The
Province’s Duty

57The Province of British Columbia argues that any duty to consult or
accommodate rests solely with the federal government. I cannot accept this
argument.

58The Province’s argument rests on s. 109 of the Constitution Act, 1867,
which provides that “[a]ll Lands, Mines, Minerals, and Royalties belonging to
the several Provinces of Canada . . . at the Union . . . shall belong to the
several Provinces.” The Province argues that this gives it exclusive right to
the land at issue. This right, it argues, cannot be limited by the protection
for Aboriginal rights found in s. 35 of the Constitution Act, 1982. To
do so, it argues, would “undermine the balance of federalism” (Crown’s factum,
at para. 96).

59The answer to this argument is that the Provinces took their interest in
land subject to “any Interest other than that of the Province in the same” (s.
109). The duty to consult and accommodate here at issue is grounded in the
assertion of Crown sovereignty which pre-dated the Union. It follows that the
Province took the lands subject to this duty. It cannot therefore claim that
s. 35 deprives it of powers it would otherwise have enjoyed. As stated in St.
Catherine’s Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46
(P.C.), lands in the Province are “available to [the Province] as a source of
revenue whenever the estate of the Crown is disencumbered of the Indian title”
(p. 59). The Crown’s argument on this point has been canvassed by this Court
in Delgamuukw, supra,at para. 175, where Lamer C.J.
reiterated the conclusions in St. Catherine’s Milling, supra.
There is therefore no foundation to the Province’s argument on this point.

G. Administrative
Review

60Where the government’s conduct is challenged on the basis of allegations
that it failed to discharge its duty to consult and accommodate pending claims
resolution, the matter may go to the courts for review. To date, the Province
has established no process for this purpose. The question of what standard of
review the court should apply in judging the adequacy of the government’s
efforts cannot be answered in the absence of such a process. General
principles of administrative law, however, suggest the following.

61On questions of law, a decision-maker must generally be correct: for
example, Paul v. British Columbia (Forest Appeals Commission),[2003]
2 S.C.R. 585, 2003 SCC 55. On questions of fact or mixed fact and law, on the
other hand, a reviewing body may owe a degree of deference to the
decision-maker. The existence or extent of the duty to consult or accommodate
is a legal question in the sense that it defines a legal duty. However, it is
typically premised on an assessment of the facts. It follows that a degree of
deference to the findings of fact of the initial adjudicator may be
appropriate. The need for deference and its degree will depend on the nature
of the question the tribunal was addressing and the extent to which the facts
were within the expertise of the tribunal: Law Society of New Brunswick v.
Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Paul, supra. Absent
error on legal issues, the tribunal may be in a better position to evaluate the
issue than the reviewing court, and some degree of deference may be required.
In such a case, the standard of review is likely to be reasonableness. To the
extent that the issue is one of pure law, and can be isolated from the issues
of fact, the standard is correctness. However, where the two are inextricably
entwined, the standard will likely be reasonableness: Canada (Director of
Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.

62The process itself would likely fall to be examined on a standard of
reasonableness. Perfect satisfaction is not required; the question is whether
the regulatory scheme or government action “viewed as a whole, accommodates the
collective aboriginal right in question”: Gladstone, supra, at
para. 170. What is required is not perfection, but reasonableness. As stated
in Nikal, supra,at para. 110, “in . . . information and
consultation the concept of reasonableness must come into play. . . . So long
as every reasonable effort is made to inform and to consult, such efforts would
suffice.” The government is required to make reasonable efforts to inform and
consult. This suffices to discharge the duty.

63Should the government misconceive the seriousness of the claim or impact
of the infringement, this question of law would likely be judged by
correctness. Where the government is correct on these matters and acts on the
appropriate standard, the decision will be set aside only if the government’s
process is unreasonable. The focus, as discussed above, is not on the outcome,
but on the process of consultation and accommodation.

H.
Application to the Facts

(1) Existence of the Duty

64The question is whether the Province had knowledge, real or
constructive, of the potential existence of Aboriginal right or title and
contemplated conduct that might adversely affect them. On the evidence before
the Court in this matter, the answer must unequivocally be “yes”.

65The Haida have claimed title to all of Haida Gwaii for at least 100
years. The chambers judge found that they had expressed objections to the
Province for a number of years regarding the rate of logging of old-growth
forests, methods of logging, and the environmental effects of logging.
Further, the Province was aware since at least 1994 that the Haida objected to
replacement of T.F.L. 39 without their consent and without accommodation with
respect to their title claims. As found by the chambers judge, the Province
has had available evidence of the Haida’s exclusive use and occupation of some
areas of Block 6 “[s]ince 1994, and probably much earlier”. The Province has
had available to it evidence of the importance of red cedar to the Haida
culture since before 1846 (the assertion of British sovereignty).

66The Province raises concerns over the breadth of the Haida’s claims,
observing that “[i]n a separate action the Haida claim aboriginal title to all
of the Queen Charlotte Islands, the surrounding waters, and the air space. . .
. The Haida claim includes the right to the exclusive use, occupation and benefit
of the land, inland waters, seabed, archipelagic waters and air space” (Crown’s
factum, at para. 35). However, consideration of the duty to consult and
accommodate prior to proof of a right does not amount to a prior determination
of the case on its merits. Indeed, it should be noted that, prior to the
chambers judge’s decision in this case, the Province had successfully moved to
sever the question of the existence and infringement of Haida title and rights
from issues involving the duty to consult and accommodate. The issues were
clearly separate in the proceedings, at the Province’s instigation.

67The chambers judge ascertained that the Province knew that the
potential Aboriginal right and title applied to Block 6, and could be affected
by the decision to replace T.F.L. 39. On this basis, the honour of the Crown
mandated consultation prior to making a decision that might adversely affect
the claimed Aboriginal title and rights.

(2) Scope of the Duty

68As discussed above, the scope of the consultation required will be
proportionate to a preliminary assessment of the strength of the case
supporting the existence of the right or title, and to the seriousness of the
potentially adverse effect upon the right or title claimed.

(i) Strength of the Case

69On the basis of evidence described as “voluminous”, the chambers judge
found, at para. 25, a number of conclusions to be “inescapable” regarding the
Haida’s claims. He found that the Haida had inhabited Haida Gwaii continuously
since at least 1774, that they had never been conquered, never surrendered
their rights by treaty, and that their rights had not been extinguished by
federal legislation. Their culture has utilized red cedar from old-growth
forests on both coastal and inland areas of what is now Block 6 of T.F.L. 39
since at least 1846.

70The chambers judge’s thorough assessment of the evidence distinguishes
between the various Haida claims relevant to Block 6. On the basis of a
thorough survey of the evidence, he found, at para. 47:

(1) a “reasonable probability” that the Haida may establish title to
“at least some parts” of the coastal and inland areas of Haida Gwaii, including
coastal areas of Block 6. There appears to be a “reasonable possibility” that
these areas will include inland areas of Block 6;

(2) a “substantial probability” that the Haida will be able to
establish an aboriginal right to harvest old-growth red cedar trees from both
coastal and inland areas of Block 6.

The chambers
judge acknowledged that a final resolution would require a great deal of
further evidence, but said he thought it “fair to say that the Haida claim goes
far beyond the mere ‘assertion’ of Aboriginal title” (para. 50).

71The chambers judge’s findings grounded the Court of Appeal’s conclusion
that the Haida claims to title and Aboriginal rights were “supported by a good prima
facie case” (para. 49). The strength of the case goes to the extent of the
duty that the Province was required to fulfill. In this case the evidence
clearly supports a conclusion that, pending a final resolution, there was a prima
facie case in support of Aboriginal title, and a strong prima facie
case for the Aboriginal right to harvest red cedar.

(ii) Seriousness of the Potential Impact

72The evidence before the chambers judge indicated that red cedar has long
been integral to Haida culture. The chambers judge considered that there was a
“reasonable probability” that the Haida would be able to establish infringement
of an Aboriginal right to harvest red cedar “by proof that old-growth cedar has
been and will continue to be logged on Block 6, and that it is of limited
supply” (para. 48). The prospect of continued logging of a resource in limited
supply points to the potential impact on an Aboriginal right of the decision to
replace T.F.L. 39.

73Tree Farm Licences are exclusive, long-term licences. T.F.L. 39 grants
exclusive rights to Weyerhaeuser to harvest timber within an area constituting
almost one quarter of the total land of Haida Gwaii. The chambers judge
observed that “it [is] apparent that large areas of Block 6 have been logged
off” (para. 59). This points to the potential impact on Aboriginal rights of
the decision to replace T.F.L. 39.

74To the Province’s credit, the terms of T.F.L. 39 impose requirements on
Weyerhaeuser with respect to Aboriginal peoples. However, more was required.
Where the government has knowledge of an asserted Aboriginal right or title, it
must consult the Aboriginal peoples on how exploitation of the land should
proceed.

75The next question is when does the duty to consult arise? Does it arise
at the stage of granting a Tree Farm Licence, or only at the stage of granting
cutting permits? The T.F.L. replacement does not itself authorize timber
harvesting, which occurs only pursuant to cutting permits. T.F.L. replacements
occur periodically, and a particular T.F.L. replacement decision may not result
in the substance of the asserted right being destroyed. The Province argues
that, although it did not consult the Haida prior to replacing the T.F.L., it
“has consulted, and continues to consult with the Haida prior to authorizing
any cutting permits or other operational plans” (Crown’s factum, at para. 64).

76I conclude that the Province has a duty to consult and perhaps accommodate
on T.F.L. decisions. The T.F.L. decision reflects the strategic planning for
utilization of the resource. Decisions made during strategic planning may have
potentially serious impacts on Aboriginal right and title. The holder of
T.F.L. 39 must submit a management plan to the Chief Forester every five years,
to include inventories of the licence area’s resources, a timber supply
analysis, and a “20-Year Plan” setting out a hypothetical sequence of
cutblocks. The inventories and the timber supply analysis form the basis of
the determination of the allowable annual cut (“A.A.C.”) for the licence. The
licensee thus develops the technical information based upon which the A.A.C. is
calculated. Consultation at the operational level thus has little effect on
the quantity of the annual allowable cut, which in turn determines cutting
permit terms. If consultation is to be meaningful, it must take place at the
stage of granting or renewing Tree Farm Licences.

77The last issue is whether the Crown’s duty went beyond consultation on
T.F.L. decisions, to accommodation. We cannot know, on the facts here, whether
consultation would have led to a need for accommodation. However, the strength
of the case for both the Haida title and the Haida right to harvest red cedar,
coupled with the serious impact of incremental strategic decisions on those
interests, suggest that the honour of the Crown may well require significant
accommodation to preserve the Haida interest pending resolution of their
claims.

(3) Did the Crown Fulfill its Duty?

78The Province did not consult with the Haida on the replacement of T.F.L.
39. The chambers judge found, at para. 42:

[O]n the evidence presented, it is apparent that the Minister refused
to consult with the Haida about replacing T.F.L. 39 in 1995 and 2000, on the
grounds that he was not required by law to consult, and that such consultation
could not affect his statutory duty to replace T.F.L. 39.

In both this
Court and the courts below, the Province points to various measures and
policies taken to address Aboriginal interests. At this Court, the Province
argued that “[t]he Haida were and are consulted with respect to forest
development plans and cutting permits. . . . Through past consultations with
the Haida, the Province has taken various steps to mitigate the effects of
harvesting . . .” (Crown’s factum, at para. 75). However, these measures and
policies do not amount to and cannot substitute for consultation with respect
to the decision to replace T.F.L. 39 and the setting of the licence’s terms and
conditions.

79It follows, therefore, that the Province failed to meet its duty to
engage in something significantly deeper than mere consultation. It failed to
engage in any meaningful consultation at all.

III. Conclusion

80The Crown’s appeal is dismissed and Weyerhaeuser’s appeal is
allowed. The British Columbia Court of Appeal’s order is varied so that the
Crown’s obligation to consult does not extend to Weyerhaeuser. The Crown has
agreed to pay the costs of the respondents regarding the application for leave
to appeal and the appeal. Weyerhaeuser shall be relieved of any obligation to
pay the costs of the Haida in the courts below. It is not necessary to answer
the constitutional question stated in this appeal.

Appeal by the Crown dismissed. Appeal by Weyerhaeuser Co. allowed.

Solicitors for the appellant the Minister of Forests: Fuller
Pearlman & McNeil, Victoria.

Solicitor for the appellant the Attorney General of British Columbia
on behalf of Her Majesty the Queen in Right of the Province of British
Columbia: Attorney General of British Columbia, Victoria.

Solicitors for the appellant Weyerhaeuser Company Limited: Hunter
Voith, Vancouver.

Solicitors for the respondents: EAGLE, Surrey.

Solicitor for the intervener the Attorney General of Canada:
Department of Justice, Vancouver.

Solicitor for the intervener the Attorney General of Ontario:
Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney General of Quebec:
Department of Justice, Sainte-Foy.

Solicitor for the intervener the Attorney General of Nova Scotia:
Department of Justice, Halifax.

Solicitor for the intervener the Attorney General for Saskatchewan:
Deputy Attorney General for Saskatchewan, Regina.

Solicitor for the intervener the Attorney General of Alberta:
Department of Justice, Edmonton.

Solicitors for the interveners the Squamish Indian Band and the Lax‑kw’alaams
Indian Band: Ratcliff & Company, North Vancouver.

Solicitors for the interveners the Business Council of British
Columbia, the Aggregate Producers Association of British Columbia, the British
Columbia and Yukon Chamber of Mines, the British Columbia Chamber of Commerce,
the Council of Forest Industries and the Mining Association of British
Columbia: Fasken Martineau DuMoulin, Vancouver.

Solicitors for the intervener the British Columbia Cattlemen’s
Association: McCarthy Tétrault, Vancouver.

Solicitors for the intervener the Village of Port Clements: Rush
Crane Guenther & Adams, Vancouver.

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